페이지 이미지

upon the American Bank Building based either alone, or with some other person, deupon his knowledge of its cost. It was not posited the money for and in behalf of hershown that the stock had no marketable value, self and other persons, the owners of said and, if it had been, no effort was made to money, then, for the purposes of the trial, show the value of the assets of the corporation. they would consider the money was deCertainly it was not proper to ask the value of posited by Mrs. Vogt. As the evidence disthe building separate from the ground, or the closed beyond controversy that she was the ground separate from the building. The president and a member of a voluntary charcourt did not exclude evidence as to what itable association, to whom the money bethe real estate as it stood, with the building longed, and, as such, had been intrusted on it, was worth as a whole. The witness with the money, unquestionably the indictwas nowhere asked what the market value ment and instructions properly laid the ownof the building was at the time. This evi- ership in her, as against all wrongdoers and dence was only received to show the value tort feasors, and there was no variance in of stock in the absence of better evidence. the proof. It is said by defendant that the It had already been shown that the stock fourteenth instructicn is erroneous, in not itself had a value, and the inquiry, at most, defining what it meant therein by "assentshould have been confined to the market ing to the reception in said bank of a devalue at the date of the assignment or fail- | posit of three hundred dollars of money, ure. This is the full extent to which Hewitt of the value of thirty dollars or more," after V. Steele, 118 Mo. 463, 24 S. W. 440, went. he had knowledge that said bank was in In that case it was shown the corporation had failing circumstances. These words are all never put its stock on the market, and we plain, simple, English words, and express permitted proof of the market value of the very clearly what would constitute a crimplant, the only property it had, in order to inal taking or reception of the money.

An determine whether the stock had been negli- attempt to simplify would end only in mysgently sacrificed. Neither was there any tifying. This demand for explanation of error in excluding Mr. Hanna as a witness such common expressions, readily underto the value of the Denison Building & stood by all people of ordinary intellect, is Land Company. He himself testified he sold without reason. It assumes an ignorance on his stock in the company in 1892, and did the part of jurors which, if true, would not know its value July 10, 1893. When stamp the jury system as a fraud. We have Albert Marty was on the stand, it was sought

not found the ordinary juror so ignorant, by defendant to show the value of the Amer- and are unwilling to believe he is incapable of ican Bank Building Company's stock by giv- comprehending an instruction so simple as ing the value of the land and building sepa- this. Moreover, the fifteenth instruction adrately, whereupon the criminal court ruled vised the jury as to the law if an employé “that he may testify to the reasonable mar- under defendant received the deposit. The ket value of this property on July 10, 1893.” defendant argues that, to make defendant This was correct. Defendant introduced his liable for the reception of the deposit by one evidence on this theory, and had the full of the employés acting under his direction benefit of it. The exclusion of the testimony and authority, such authority must have of W. F. Reed to prove what the supreme been given after he knew the bank was in court of Kansas had decided with reference failing circumstances. This cannot be true. to the Buchanan law, and the effect of tax The moment he became aware the bank was deeds, is not shown to be prejudicial in any in failing circumstances, the law devolved way. It would seem that it had, or was upon him the duty of revoking the authority supposed to have, some relevancy to a tax of any employé under him, and subject to deed in evidence; but, as neither the tax his control, to receive any further deposit; deed nor the Kansas law has been preserved and his failure to prevent further deposits in the bill, we would not be able to apply must be construed as a continuing authority the decision of the supreme court of Kansas to receive them, and an assenting thereto, to the facts, and hence must presume the cir- because by one word it was in his power cuit court correctly excluded it. We have to close the bank, or notify all parties that not overlooked, or failed to consider, other no more deposits would be received. This objections to evidence, but we do not deem was the plain measure of his duty, as preit necessary to lengthen this opinion, already scribed by the law, which he was conclutoo long, by minute reference thereto. It sively bound to know. The seventeenth inwill suffice to say we find no reversible error struction is in these words: “The court ineither in the admission or rejection of evidence. structs the jury that the failure of the bank

3. The court's instructions are challenged. | ing institution in this case is prima facie Instruction No. 7 has been approved so evidence of knowledge on the part of its often in this state that we must decline to cashier that the same was in failing circumenter upon its defense. State v. Carlisle, 57 stances on July 10, 1893. The court inMo. 102; State v. Brown, 104 Mo. 365, 16 structs the jury that prima facie evidence is S. W. 406; State v. Wisdom, 119 Mo. 539, 24 such that raises such a degree of probability S. W. 1017. The ninth and tenth instruc- in its favor that it must prevail unless it be tions directed the jury that if Mrs. Vogt, 1 rebutted, or the contrary proved.” This instruction is a rescript of the statute, and made about 3 o'clock in the afternoon, and was expressly approved, after an exhaustive before 8 o'clock that night the deed of asexamination and discussion, in State V. signment was drawn up and executed, ready Buck, 120 Mo. 479, 25 S. W. 573. But we are for recording the next morning. As cashier now asked to reconsider that case, and say of the bank, it was defendant's duty to that this instruction should not be given know the condition of the bank's finances. without the further modification suggested He knew there was only $11,000 in the vault, in these words: "In the absence of any and that the liabilities amounted in round evidence tending to explain or modify that numbers to $2,000,000. It is utterly contrary presumption." This would be tautological. to human and business experience that the The court had already told the jury the pre- man most intimately acquainted with the sumption was subject to be rebutted and bank's resources could have been ignorant overturned by the other evidence. Along of the impending failure. We think the with this instruction, the court was careful presumption accords with the common exto instruct the jury they must acquit unless perience of mankind, and casts the burden they found defendant guilty beyond a rea- upon the one whose duty it is to account for sonable doubt, upon the whole evidence. It the moneys confined to his keeping. We is true, it has been said that a prima facie have gone carefully through all the other incase is not sufficient in a criminal prosecu- structions, and are of opinion that the court tion. If it is meant by these cases, as we fully and fairly instructed the jury upon think it is, that the state has the burden every point; and, this being true, there was throughout a criminal prosecution to show no error in refusing instructions prayed for the guilt of the defendant beyond a reason

by the parties. able doubt, then we heartily concur in that Finally, it is urged that the judgment view; but if, on the other hand, it is meant must be reversed because the jury rendered that the presumptions indulged by the law a general verdict of guilty, and did not in civil cases have no effect in a criminal specify the count. The evidence shows but case, we do not agree to it. From time one transaction,-the receipt of the deposit, immemorial, in the prosecution of prisoners and the issuing of the certificate of deposit. for larceny and burglary, the common-law When the several offenses charged in the courts have uniformly instructed the juries different counts of an indictment, though that recent possession of stolen property

distinct in law, spring out of one and the was prima facie evidence that the person in same transaction, or are so connected in whose possession it is found was the thief, their facts as to make them parts of one and, if he failed to account for his posses

transaction, the defendant cannot be prejusion of such property in a manner consistent diced by the joinder, and the court will not with his innocence, this presumption became compel an election, and will sustain a genconclusive against him. In such a case, is eral verdict. 1 Bish. Cr. Proc. $ 457, note 3, it not self-evident that the prima facie case

and sections 458, 459; State v. Testerman, is sufficient and conclusive, unless rebutted 68 Mo. 408; State v. Core, 70 Mo. 491; State by the other evidence in the case? After a v. Noland, 111 Mo. 473, 19 S. W. 715. Bemost careful and patient review of the ef- ing unable to sustain any of the errors asfect of presumptions in such cases, in State signed, the judgment is affirmed. v. Kelly, 73 Mo. 608, Sherwood, C. J., deduced this result: "In cases of this sort the SHERWOOD and BURGESS, JJ., concur. state, by reason of the presumption arising from the fact of possession, has adduced prima facie evidence of theft; and evidence of this description is said to be such as is ST. LOUIS, C. G. & FT. S. RY. CO. v. sufficient to establish the fact, and, if not

HOLLADAY et al. rebutted, becomes so conclusive as to re- (Supreme Court of Missouri, Division No. 2. quire a verdict in accordance therewith;" cit

Dec. 3, 1895.) ing Kelly v. Jackson, 6 Pet. 622; 1 Greenl. RECEIVERS-JOINDER AS PARTIES---CHANGE OF VExEv. § 33, note; U. S. v. Wiggins, 14 Pet.


PLEADING - CONTINUANCE-ABSENCE OF Cous. 334; Com. v. McGorty, 114 Mass. 299; State v. Dickson, 78 Mo. loc. cit. 447. Strong as 1. It is not error to refuse an application the presumption of theft from recent posses- to make a receiver of a corporation party to an sion of stolen property is, it stands upon no

action by it for injunction begun before his ap

pointment, the application being made, not by surer foundation than the presumption of

him, but by attorneys for the corporation, and knowledge which the law presumes the just before the cause is to be called for trial, cashier and managing officers had of its fail- under circumstances that would necessitate its ing condition from the failure itself, in the

going over the term if the application were

granted, though the receiver was appointed six absence of evidence rebutting that knowl- months before, and no excuse is shown why apedge. It is entirely possible that the bank plication should not have been made earlier. may be ruined by the crime or fraud of sub- 2. A party can, by the express provision of

Rev. St. 1889, 8 2258, be given but one change ordinate employés, or by a sudden and un

of venue. expected panic, and the officers innocent of

3. Notice of one or two hours is not suffiall wrong. In this case the deposit was cient, within Rev. St. 1889, $ 2262, providing



for consideration of an application for change | come, restrain, or set aside any other judgof venue if reasonable notice be given the ad

ment at law. Association v. Parker, 58 Mo. verse party. 4. Under Rev. St. 1889, $ 2261, requiring

327, and cases cited. The petition in this affiant to state "when he obtained his informa- case is, indeed, a nondescript. It is filled tion and knowledge of the existence of the with a mass of irrelevant matter, wholly cause assigned for his application for change of

foreign to the mere purpose of enjoining the venue, it is not enough to state merely that he obtained it "since the last term of court; it

collection of the judgment mentioned; seeks not thus being shown whether diligence was ex- an accounting on matters entirely extraneous ercised in making the application.

to and independent of the garnishment judg5. An application for change of venue on the ground that the opposite party had an undue

ment; asks a recovery in the sum of $5,000; influence over the mind of the court is properly and seems to have been framed, adapted, and refused, it having been prepared before and designed to speak thus of its chaotic allegapresented immediately after an application by the party that a receiver be made a party.

tions with the sole purpose in view of delay. 6. The clerk of the court having stated that To this petition appear the names of William he could not find certain pleadings in the case, Carter and Wilson & Whitelaw, as attorneys, and defendant's counsel having stated that they and it is sworn to by Louis Houck, as presiwere in the possession of an attorney for plaintiff, who was not present, that he consented to

dent of the corporation. Plaintiff company his taking them away over a year before, and

gave bond, and obtained a temporary injuncthis being uncontradicted, and no objection be- tion, restraining the collection of the judg. ing made by the attorney for plaintiff, who was

ment. Defendant Holladay, at the March present, when defendant's counsel stated to the court that he would file certified copies in case

term, 1891, filed an answer to the petition, the originals could not be found, permission to claiming that plaintiff owed him $17,800 over file such copies thereafter given, over the ob

and above the judgment aforesaid, denied the jection of plaintiff's counsel that notice of in

principal allegations of the petition, and tention to file them had not been served on or waived by him or plaintiff, will not be held er- sought to recover judgment for the amount ror, it not being intimated that the pleadings thus claimed, and upon this filed his motion thus supplied were not correct copies.

to dissolve the temporary injunction, which 7. Refusal of continuance for absence of counsel familiar with the facts in the case is

motion does not appear to have been acted not error, no excuse for his absence being given. on. After the answer of defendant had been

filed, the parties agreed of record that the Appeal from circuit court, Carter county;

cause should be passed to the June adjourned John G. Wear, Judge.

term, 1891, for trial. At that term, plaintiff Action by the St. Louis, Cape Girardeau &

applied for and obtained a change of venue Ft. Smith Railway Company against Hiram N. Holladay and another. Judgment for de

from Wayne county, and from the Twenty

Sixth judicial circuit. The application therefendants. Plaintiff appeals. Affirmed.

for is in effect the following: (1) Undue inM. R. Smith, for appellant. Dinning & fluence of the adverse party over the mind of Byrns, for respondents.

the court (Judge James F. Greene) is char

ged; and the allegation made that it cannot SHERWOOD, J. This cause originated in have a fair and impartial trial on this acWayne county, and was begun November 6, count. (2) It is alleged that a fair and im1890. The ostensible object of this proceed- | partial trial cannot be had by plaintiff in ing was to restrain defendant Holladay from said county of Wayne, because the inhabcollecting a judgment recovered by him in itants of that county are prejudiced against the Wayne circuit court in October, 1890, | it, the applicant railroad company, and (3) beagainst the plaintiff company, as garnishee of cause the opposite party has an undue inFlaherty & Deavignon, for the sum of $1,630, fluence over the inhabitants of Wayne county, who, it seems, were contractors on plaintiff's and therefore the petitioner cannot have a joad, and to whom plaintiff owed that sum. fair and impartial trial. This application is The other defendant, Johnson, is the sheriff signed by William Carter, William H. Milof Wayne county. The petition admits that ler, and M. R. Smith, as attorneys, and is judgment was rendered against it on garnish- sworn to by Edward F. Blomeyer, general sument process in manner as above said; but perintendent of the plaintiff corporation, on there is no intimation, pretense, or excuse in June 3, 1891, at Cape Girardeau, before Ruthe petition to the effect that any attempt dolph Bohn, notary public. The cause being was made by the garnishee plaintiff to plead sent to Carter county in another circuit, at some of the matters alleged in the petition to the October term, 1891, of that court; the parbe true, and which, if true and had been ties, by entry of record, agreed that the cause pleaded, would have prevented any judgment should be continued till the 4th Monday in from going against the incorporated gar- January, 1892, and be tried at Poplar Bluff, nishee.

Butler county, Mo., and the judgment to be As the garnishment judgment was suffered rendered therein in term time in Van Buren, to go without any plea or proof to arrest its Carter county, as early as convenient thereprogress, of course it would be contrary to fun- after, but no such trial took place. In June, damental principles to permit questions settled | 1892, plaintiff filed an amended petition in the by that judgment to be reopened and reagitat- Carter circuit court, and, on the same day, ed in a subsequent proceeding, without some defendant Holladay filed his answer thereto. alleg tion sufficient on proof thereof to over- Neither the amended petition nor defendant Holladay's answer differs in any material re- occasioned still further delay, and sent the spect from their predecessors in pleadings, case over to the next term. Besides that, it and the petition is signed by William Carter, was entirely within the discretion of the W. H. Miller, and M. R. Smith, and is sworn circuit court whether the receiver should be to by Louis Houck, as president of the plain- permitted to intervene and be made a party tiff corporation, on the 26th of January, 1892, to the litigation, even if he had made a perthough not filed till nearly four months there- sonal application for permission to do so, beafter. Soon after the amended petition and cause a receiver is a mere officer, the hand answer thereto were filed, to wit, in June, of the court exercising his functions in the 1892, as shown by the testimony of E. P. interest of neither plaintiff nor defendant, Settle, one of defendants' counsel, M. R. but for the mutual benefit of all the parties Smith, one of plaintiff's counsel, was permit- | litigant. Patrick V. Eells, 30 Kan. 680, 2 ted, by consent of said counsel, to take said Pac. 116; High, Rec. (3d Ed.) § 1. And it is papers away with him from Carter county, held that the receiver himself is the propand he (Settle) had never seen said papers er person to make the application to intersince, nor could the clerk of the court, Cole- vene and be joined with the corporation man, find said papers after diligent search over which he is appointed, and that to refor the same, and said clerk had not seen said fuse such application when made by the papers since June, 1892.

corporation is not error. Insurance Co. v. At the October term, 1892, of the Carter Jaynes, 87 Ill. 199; Beach, Rec. $ 708. In circuit court, by agreement of parties, the many instances it is not necessary to bring cause was continued, presumably to the next in the receiver; certainly not where the term thereafter. The October term, 1893, of parties in interest are sufficiently representthe Carter circuit court, began on Monday, ed before the court to enable it properly to the 2d day of that month. Moses Whybark, determine the controversy (High, Rec. $S who had been employed on the 27th of 259, 260, and cases cited); and this is the sitSeptember, 1893, as additional counsel in uation in the case at bar. Again, a receiver this case on behalf of plaintiff, arrived in is a stranger to all proceedings instituted Van Buren at about 3 o'clock in the after- and in progress prior to his appointment, noon of Monday, October 20, from Cape Gir- and this status remains until he has been ardeau, where Louis Houck, the president of made a party to the action by the order of the plaintiff railroad, resides. Whybark, who the court. Beach, Rec. $ 708. So that, if lives in Marble Hill, Bollinger county, on

an action be commenced against a corporaSunday afternoon, the 1st of October, set out tion before the appointment of a receiver, from his home, and took a train for Cape there is no legal objection to the continuance Girardeau. Why he went there, or whom he of the action in that form until final judgwent to visit, his affidavit does not tell us; ment is obtained. Tracy v. Bank, 37 N. Y. but, at any rate, he went there, and remain- 523; Railway Co. v. Beggs, 85 Ill. 80; Heath ed there all night. On Monday morning ear- v. Railway Co., 83 Mo. loc. cit. 621. In the ly he took the train, and reached Van Bu- foregoing circumstances, therefore, there was ren at 3 o'clock in the afternoon of Monday, no error in denying the motion for a rule on October 2d, as already related, on the first the receiver to show cause, etc., even admitclay of the term. On his arrival, Whybark's ting that such was the proper course to purfirst care was to file a motion on behalf of sue in order to make the receiver a party, plaintiff for a rule on Louis Houck, president as to which point there is no warrant or as aforesaid, to show cause why he should authority to be found. Nor, in this connecnot be made a party to this proceeding. tion should it be forgotten that assuming as This motion was signed by Miller, Smith, and true that Houck was appointed receiver on Whybark, as counsel. The orders of the the 4th of March, 1893, no reason is shown, Cape Girardeau court of common pleas, nor excuse given, why application to make which accompanied the motion, showed that him a party, etc., should not have been made Houck had been appointed receiver of the at the April term, 1893, instead of waiting plaintiff corporation on the 4th of March, six months thereafter, and until the cause 1893, with full powers, etc. This motion for had been docketed for trial. a rule, being taken up, was denied. Had it Immediately after the denial of the prebeen granted, it is easy to see that under ceding motion, plaintiff's attorney Whybark the provisions of section 2035, Rev. St. 1889, filed an application, which he had with him it would, as the distance to Cape Girardeau already prepared, for a change of venue. is shown to be 70 miles from Van Buren, This application was signed by Smith, Millhave taken at least seven days in order to er, and Whybark, and is sworn to at Cape serve the rule on Houck after the motion had Girardeau by McCarty, the general manager been granted, saying nothing as to a reason- of the plaintiff railroad. This affidavit is able time which should have been given him dated September 30, 1893, which was the Satin which to answer the rule, so that it would urday next before the Sunday when Whyhave required a much longer time to have bark went on his trip to Cape Girardeau. the rule served and answered than is usually The application and affidavit charged the allotted for a term of the circuit court in judge of the circuit court, Judge Wear, with the rural districts; so that this would have prejudice against the plaintiff railroad, and that defendant Holladay had an undue influ- when he pretends to have information which ence over the mind of said judge, and that, should prompt him at once to oust that court in consequence of these grounds, the plain- of its jurisdiction. He

He cannot take the tiff railroad could not have a fair and impar- chances in any such way. State v. Matlock, tial trial, and that the information on which 82 Mo. loc. cit. 457.. the application for a change of venue was After the change of venue was denied, the based had come to the knowledge of the af- court ordered the cause to proceed, wherefiant since the last term of the Carter circuit upon counsel for defendants informed the court. Dinning, attorney for defendants, on court that the last amended petition and anpresentation of the intended application, ad- swer could not be found, and asked for a mitted that notice was given him at 3 o'clock rule on the clerk, and the clerk responded of the same afternoon. It will be remember- as already set forth; and then the statement ed that in the affidavit for a change of venue was made by one of defendants' counsel, it was alleged that the opposite party had which is uncontradicted, that the lost papers an undue influence over the mind of Judge were in the possession of M. R. Smith, counGreene.

sel of plaintiff, and that he was, by consent The court took up the application for a of counsel for defendants, allowed to take change of venue, and refused to grant it, giv- them away in June, 1892, and they had never ing as reasons that—"First, the application been seen since. Then counsel for defendcomes after the cause has been twice called ants informed the court, in the presence of on the docket for trial; second, because there plaintiff's counsel, that he would file certihas been one change of venue granted the fied copies of the original pleadings in case plaintiff heretofore; third, because the ap- the originals could not be found. There was plication was not made until after the appli- no objection made by plaintiff's counsel to cation for a rule to bring in the receiver had the lost papers being thus supplied. This been made by plaintiff, and the ruling there- ended the first day's proceedings. On the on had; fourth, because the application states second day of the term (Tuesday, October 3, that the facts came to plaintiff since the 1893), defendants' attorney renewed his state last adjournment of this court, and there is ment that the lost pleadings were in the posnothing to indicate that notice of this appli- session of M. R. Smith, one of counsel for cation could not have been given to defend- plaintiff, and that he was informed by Moses ant before this cause had been called for

Whybark, then present, that Smith, one of trial on the docket.” There can exist no his co-counsel, would be present in court at doubt of the correctness of this ruling. Our 3 o'clock of that day. Thus ended the secstatute is explicit that but one change of ond day of the term. On Wednesday, the venue shall be granted either party. Rev. third day of the term, and 4th day of OctoSt. 1889, § 2238. This point alone would be ber, 1893, Smith having failed to arrive, and sufficient to dispose of the case in affirm- the papers not being produced, counsel for ance of the ruling made. But there was no defendants were allowed to supply the missnotice given of the intended application for a ing files. The only objection urged by plainchange of venue; that is to say, no reasona- tiff's counsel to this was "because no notice ble notice. An hour or two's notice does not of such intention was served to file said paanswer the requirements of section 2262, pers, had been served on him or plaintiff, Rev. St. 1889. Section 2261 requires that or waived by him or plaintiff.” These copies affiant shall state "when he obtained his in- of pleadings were duly verified by one of formation and knowledge of the existence" counsel for defendants, who was familiar of the cause assigned as the basis of the ap- with the originals, and had helped prepare plication. Here the statement made is that the answer, and he also testified, as heretosuch information reached affiant "since the fore stated, that Smith had taken the lost last tern of the Carter county circuit court." papers away with him in June, 1892. No How long "since" that term does not appear. error is seen in this ruling of the circuit Obviously, such a statement is not a compli- court. Independent of the statute, a court ance with the statute, and does not enable has the power of supplying its missing pathe court to determine what diligence, if, in- pers, records, or files. State v. Simpson, 67 deed, any, has been employed, after discov- Mo. 647. Generally speaking, notice would ering the ground therefor, in applying for have to be given to counsel having the pathe change. But the worst feature in the pers to produce them, before supplying them, matter of this application is the fact that, but this was unnecessary in the circumstanwith the sworn information in his pocket ces of this case. It is not intimated that that the "opposite party had an undue influ- the files thus supplied were not in all respects ence over the mind of the judge,” counsel substantial, if not literal, copies of the origholds this in reserve, while he files a motion inals; and in these circumstances it should for a rule, etc., and, so soon as he sees this be held no ground for reversal that the copunsuccessful, draws forth and presents the ies were not supplied in strict conformity to application for a change of venue. Such the statute. See Ivy v. Yancey (Mo. Sup.) conduct will not be tolerated in a court of 31 S. W., loc. cit. 938, for an analogous rule. justice. A party will not be permitted to Reversals should not occur because of non.. submit himself to the jurisdiction of a court detrimental error.

« 이전계속 »